Tag: SCOTUS

In light of the current debate on Capitol Hill, the quotation of the day comes from the Supreme Court’s majority opinion in D.C. v. Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

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This is the second comment in as many days I’ve seen on this point. John McCain was born abroad, on a United States military base in the Panama Canal Zone. Does that make him ineligible under the United States Constitution, Article I, section 1, clause 5 (the “Natural Born Citizen Clause”)? The clause states that:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

I have not researched the question with a view to SCOTUS precedents, but I have always taken that clause to mean, “born a citizen,” as opposed to “naturalized.” It seems kind of incredible to suggest that the Founders would have excluded from the presidency a man born to American citizens on an American military installation, there on orders, as a foreigner or threat to the internal and sovereign governance of the United States. Of course, I also can’t see anyone with standing – whomever that might be – being so foolish as to challenge McCain’s eligibility, should he be elected, in the courts.

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The Supreme Court upheld the Solomon Amendment, which bars colleges from accepting federal funds if they refuse to allow military recruiters on their campuses. The unanimous (8-0, since Alito had not been confirmed when the case was argued) opinion was the third written by Chief Justice John Roberts. Thirty-six law schools had challenged the law in the case, Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.

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Bush nominated Samuel Alito to the Supreme Court, today. Judge Alito is currently on the Court of Appeals for the Third Circuit (PA, NJ, DE). From everything I know of him and his judicial history, I couldn’t be happier about his nomination.

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John Kerry is insisting that the White House release “in their entirety” all documents and memos from John Roberts’s time there. Kerry, despite repeated claims to the contrary, never made public most of his (relevant) Vietnam records, including medical forms, discharge papers, and award citations. Apparently, routine memos are important if John Kerry is to fairly evaluate a SCOTUS nominee, but the nature of his own (original) military discharge was not important to voters choosing a Commander in Chief.

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After a long career in serving our country, Justice Sandra Day O’Connor is retiring.

It will be very interesting to see who is nominated – and who is confirmed – to replace Justice O’Connor. A more conservative replacement could make a lot of 5-4 decisions swing the other way, while another moderate would preserve the suspense.

Seems to me, the confirmation battle will be very interesting, and probably prophetic of the 2008 election. If Senate Democrats filibuster on a nominee for too long, it could kill them in ’08. On the other hand, if a very conservative or very controversial candidate breezes through, it could hurt the GOP. Anybody got thoughts on this?

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I had to jump on the bandwagon, here, and comment on the Kelo case (KELO et al v. CITY OF NEW LONDON et al). For those who don’t know, the Kelo case was brought by a homeowner (Kelo) against the city of New London, CT, because the city intended to force homeowners off their land in order to allow private companies (Pfizer, in particular) to build there. The U.S. Coast Guard will also have a small museum on the land in question. The Supreme Court of the United States held (5-4) that the city has the right to take the land.

Now, the relevant law is basically the “takings” clause of the Fifth Amendment; it states, “nor shall private property be taken for public use, without just compensation.” In Kelo, SCOTUS extends the meaning of “public use” to include tax accounting (that is, the city hoped by drawing in businesses to raise tax revenue, and the Court decided that this constitutes “public use”).

To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property–and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment.

And again:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).

Frankly, this decision is a travesty. We tend to forget the Fifth Amendment, except in criminal trials (right not to self-incriminate), but the right to private property and the defense against government seizure thereof is actually one of the most fundamental rights in the entire Constitution and Bill of Rights. After all, what good are free speech, free presses, the right to vote, and the freedom of religion, for example, if an offended government can take a person’s land and declare it to be, say, a park, without paying a fair price for it? The Kelo decision greatly erodes our right to own private property.

Next step on this slope: LA starts forcing people who own what pass for “cottages” to sell out, so bigger houses can be built on the same land, raising property tax revenue. It’s not that big a step…

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DISCLAIMER: Views and opinions expressed are my own and not those of Morgan, Lewis & Bockius LLP. Nothing on this site constitutes legal or financial advice. The author cannot and does not provide legal advice to users of this site. If you need legal advice on any matter, you should contact a licensed attorney in your jurisdiction. The author of this site does not offer financial or business advice. All investments involve risk; you may lose money. Only invest what you can afford to lose, remember that investments have risks and tax consequences, and seek advice from a licensed attorney and a licensed accountant if you have questions.

DISCLAIMER: Views and opinions expressed are my own and not those of Morgan, Lewis & Bockius LLP. Nothing on this site constitutes legal or financial advice. The author cannot and does not provide legal advice to users of this site. If you need legal advice on any matter, you should contact a licensed attorney in your jurisdiction. The author of this site does not offer financial or business advice. All investments involve risk; you may lose money. Only invest what you can afford to lose, remember that investments have risks and tax consequences, and seek advice from a licensed attorney and a licensed accountant if you have questions.